Analysis and commentary by Reed Smith attorneys on developments in employment and labor law

Time travelling to and from work can count as working time

In the case of Federacion de Servicios Privados del sindicato Comisiones Obreras –v – Tyco, the Advocate General has held that, where an employee has no fixed or habitual place of work, time spent travelling from home to the first place of work of the day and from the last place of work of the day to home should be counted as working time for purposes of the EU Working Time Directive.

Background

The employees in this case installed and maintained security alarm systems. They had no fixed place of work. They were provided with a company vehicle and allocated to a particular region. On each working day, the employees travelled to jobs at customers’ premises allocated by the employer. At least once a week, the employees would travel to a logistics centre to collect parts needed for their work.

The employer counted the employees’ working time as starting when the employee arrived at the first job of the day and continuing until the end of the final job of the day. Travel time between jobs counted as working time. However, time spent travelling from home to the first job of the day and from the last job of the day back home did not count. The employees challenged this before the Spanish courts, saying that this was “working time” for the purposes of the EU’s Working Time Directive.

The Spanish court referred the matter to the Court of Justice of the European Union (“CJEU”). Prior to the CJEU making a decision, a preliminary assessment had been undertaken by the Advocate General. The Advocate General’s view is usually, but not always, followed by the CJEU.

Advocate General’s Decision

The Advocate General decided that time spent by the employees travelling from home to their first job of the day and from the last job of the day back home did constitute working time for the purposes of the Working Time Directive. The Advocate General applied tests previously developed by the CJEU to decide whether time was working time. These tests are whether, at a particular time, the employees were:

At the work place

At the disposal of the employer

Carrying out activities or duties of their job

The Advocate General ruled that, because the employees had no fixed place of work, their time spent travelling to and from work was an integral part of their duties, in the same way as travelling between jobs during the working day. During this travelling time, the employees were subject to the employer’s instructions, and the vehicle in which they travelled was, in effect, the work place during that time.

Impact on Employers

As mentioned above, the Advocate General’s decision is not binding on the CJEU and it may be that a different conclusion is reached, although this is rarely the case. It would therefore be worthwhile for employers to review how they calculate working time for employees who do not have a fixed or habitual place of work. The fact that these hours may have to be included in determining employees’ working time may impact on whether employers are complying with working time limits contained in the Working Time Regulations.